MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, PETITIONER V.
DEFENDERS OF WILDLIFE, ET AL.
No. 90-1424
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit
Reply Brief For The Petitioner
Respondents challenge an interpretation of Section 7(a)(2) of the
Endangered Species Act of 1973 (ESA), 16 U.S.C. 1536(a)(2), that is
set forth in a regulation issued by the Secretary of the Interior. We
explain in the certiorari petition (at 13-20) that respondents fail to
satisfy the bedrock standing requirements of Article III of the
Constitution, and that the court of appeals' holding to the contrary
squarely conflicts with decisions of this Court and other courts of
appeals. We also explain (Pet. 20-29) that the court of appeals'
holding that Section 7(a)(2) of the ESA applies to actions in foreign
countries is contrary to the presumption against extraterritorial
application of federal statutes, disregards the principle of deference
to the administrative interpretation, and is unsupported by the text
and legislative history of the ESA. The error on the merits now is
especially clear in light of EEOC v. Arabian American Oil Co., 111 S.
Ct. 1227 (1991), which held that Title VII of the Civil Rights Act of
1964 does not apply to the conduct of American employers in foreign
countries. Respondents have offered no persuasive defense of the
standing and extraterritoriality rulings by the court below and no
persuasive reason why this Court should decline to consider these
important issues.
A. As they did in the courts below, respondents have wholly failed
to establish their standing -- in the abstract setting of this case --
to challenge the Secretary's interpretation of Section 7(a)(2).
1. The court of appeals held that the respondent environmental
organizations have standing in their own right to challenge the
statutory interpretation set forth in the regulation at issue, based
on the supposed "procedural" injury they will suffer if federal
agencies do not consult with one another about the impact of projects
in foreign countries. This is so, the court held, even if
respondents' members have no geographical nexus to the site of any
such overseas project and therefore will not suffer the sort of
concrete environmental (or other) injury that is necessary to satisfy
Article III standing requirements. Pet. App. 10a-11a, 42a-44a. We
have pointed out (Pet. 18) that there is no support in the text or
legislative history for the notion that Section 7(a)(2) confers
"procedural" rights on environmental organizations, especially since
it provides for consultation solely between federal agencies, without
any mechanism for public input. We also have explained (Pet. 13,
18-19) that organizations like respondents could not in any event
establish Article III standing unless they showed that they (or their
members) have some concrete stake in the matter that is distinct from
whatever interest they might assert in having a federal agency adhere
to alleged "procedural" requirements, because "(t)his Court has
repeatedly held that an asserted right to have the Government act in
accordance with law is not sufficient, standing alone, to confer
jurisdiction on a federal court." Allen v. Wright, 468 U.S. 737, 754
(1984) (citing Schlesinger v. Reservists Committee to Stop the War,
418 U.S. 208 (1974), and Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464 (1982)).
Respondents make no effort to rebut our submission that neither the
ESA nor Article III supports the "procedural injury" theory of
standing adopted by the court of appeals. Nor do respondents deny
that the court of appeals' holding in this respect squarely conflicts
not only with the decisions of this Court cited above, but also with
the decisions of three other courts of appeals that have limited the
"procedural injury" theory of standing to a litigant "having a
sufficient geographical nexus to the site of the challenged project
that he may be expected to suffer whatever environmental consequences
that the project may have." City of Los Angeles v. NHTSA, 912 F.2d
478, 492-493 (D.C. Cir. 1990) (quoting City of Davis v. Coleman, 521
F.2d 661, 671 (9th Cir. 1975)); see Pet. 18 (citing cases); Br. in
Opp. 20 n.4. Respondents therefore have effectively conceded that the
decision below warrants review.
2. Respondents do attempt (Br. in Opp. 15-21) to defend the court
of appeals' alternative holding that respondent Defenders of Wildlife
has standing on the basis of injury allegedly suffered by two of its
members. /1/ Congress has not enacted any statutory provision
authorizing a person to bring an immediate challenge to an
interpretative regulation issued by the Secretary of the Interior to
guide other federal agencies in the performance of their duties under
the ESA. Respondents' suit therefore must arise solely under the
Administrative Procedure Act, 5 U.S.C. 701 et seq. See Pet. 19 n.6.
An APA challenge to a regulation ordinarily is not ripe until the
factual components of the controversy have been fleshed out by some
concrete application of the regulation to the plaintiff's situation in
a manner that harms or threatens to harm him. Lujan v. National
Wildlife Federation, 110 S. Ct. 3177, 3190 (1990).
Here, respondents focus (Br. in Opp. 17-19) on two projects abroad,
the Mahaweli Project in Sri Lanka and the rehabilitation of the Aswan
High Dam in Egypt, each of which lies within an area that was once
visited by a member of respondent Defenders of Wildlife. This suit,
however, does not challenge the legality of any assistance furnished
by the United States to those two projects or seek to terminate that
assistance. Respondents instead challenge the Secretary's non-binding
rule interpreting the geographic scope of Section 7(a)(2) as a general
matter. /2/ Respondents cite no support for their assertion (Br. in
Opp. 15) that the Mahaweli and Aswan Projects have been "adversely
affected by the rule." Both were begun -- and Defenders' members
visited the areas in which the projects are located -- before the rule
was issued.
Undaunted, respondents insist that they have standing because they
fear that possible future visits to the project sites by Defenders'
two members may be less satisfactory if further assistance by United
States agencies is not conditioned on compliance with Section 7(a)(2).
But this allegation of "injury" rests on an unacceptably attenuated
chain of speculation: that the current manner in which those two
projects are being carried out will actually harm endangered or
threatened species (a charge that respondents have never substantiated
(see Pet. 14-15)); that a revision of the interpretation embodied in
the Secretary's non-binding regulation would cause the responsible
action agencies to shift course; that the action agencies, after
consultation, would conclude that protected species would be adversely
affected by the projects as now conceived; that the action agencies
would then convince the foreign governments concerned to alter the
projects in a way that would mitigate the adverse effect; and that
the two members of Defenders in fact would visit the project sites in
the future and benefit from any incremental abundance of the species
that could be attributed to the operation of Section 7(a)(2). If
standing were allowed to rest on such a chain of inferences (involving
independent decisions by other agencies and foreign governments not
before the court), the requirements of injury-in-fact, traceability,
and redressability would be rendered virtually meaningless, contrary
to Allen v. Wright, 468 U.S. at 757, and Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26 (1976). The seriously erroneous
decision below on standing therefore warrants review by this Court.
/3/
B. On the merits, respondents have fallen far short of
demonstrating the "affirmative," "clearly expressed," and unambiguous
congressional intent necessary to overcome the presumption against
applying an Act of Congress to activities in foreign countries. See
EEOC v. Arabian American Oil Co., 111 S. Ct. at 1230-1231.
1. Respondents go so far as to suggest (Br. in Opp. 8, 27-28 & n.7)
that the presumption against extraterritoriality is not even triggered
here because Section 7 of the ESA, 16 U.S.C. 1536, applies only to the
"planning" activities of federal agencies in the United States. It is
clear, however, that respondents are attempting to "extend the
protections of (the Act) beyond our territorial borders." 111 S. Ct.
at 1231. Although respondents repeatedly try to convey the impression
(Br. in Opp. 2, 6, 7, 8, 9, 10, 11, 15, 17, 18, 19, 20, 21, 22, 24,
26) that they seek only to compel the Secretary to adopt an
interpretation of Section 7(a)(2) that does no more than require
federal agencies to "consult" about projects in foreign countries,
consultation is merely ancillary to Section 7(a)(2)'s substantive
requirement: that each federal agency assure, "in consultation with
and with the assistance of the Secretary," that any action it
authorizes, funds, or carries out "is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of habitat of such species
which is determined by the Secretary, after consultation with the
affected States, to be critical" (unless the agency has been granted
an exemption). Thus, respondents necessarily are seeking to apply
Section 7(a)(2)'s substantive requirements to activities within a
foreign country. Indeed, respondents' standing to sue must rest on
asserted harm to species in Egypt and Sri Lanka that allegedly would
result from projects being carried out by the governments of those
countries within their borders. See pages 4-5, supra. Accordingly,
the presumption that Congress "is primarily concerned with domestic
conditions," Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949), is
fully applicable to this case. /4/
2. In seeking to overcome the presumption, respondents focus (Br.
in Opp. 21-22) on the references in Section 7(a)(2) to "any action"
and "any endangered species" -- from which respondents infer that
Section 7 must apply to actions of the United States Government
throughout the world. But even the court of appeals recognized that
merely inclusive language of a general nature such as "any" does not
rebut the presumption against extraterritorial application, Pet. App.
12a-13a (citing Foley Bros. v. Filardo, 336 U.S. at 287-288), and in
EEOC v. Arabian American Oil Co., the Court similarly declined to
sustain an extraterritorial application of United States law on the
basis of broad and general language defining the terms "employer" and
"commerce." 111 S. Ct. at 1231-1232. /5/
Respondents point out (Br. in Opp. 5, 21-22, 24-25) that Section 4
of the Act, 16 U.S.C. 1533, requires the Secretary to list species
whose habitat is abroad as well as those whose habitat is in the
United States. However, Section 4 undermines rather than supports
respondents' position. It provides for listing species in foreign
countries because of the need to designate which species will be
protected by those provisions of the Act that are explicitly
extraterritorial, such as the import restrictions in Section 9, 16
U.S.C. 1538, and the foreign assistance provisions of Section 8, 16
U.S.C. 1537. Section 4 therefore does not imply that all sections of
the Act -- and particularly Section 7(a)(2) -- are extraterritorial in
scope.
Respondents object (Br. in Opp. 24) that this interpretation
"compartmentalize(s)" the Act into parts having different geographic
applications, instead of reading the statute "as a whole" to apply to
actions overseas. But practically in the same breadth, respondents
recognize (Br. in Opp. 24-25) that Section 4(b)(1) (which governs
listing of species) and Section 4(b)(2) (which governs designations of
the critical habitats of listed species) do not have the same
geographic scope, since they do not challenge the Secretary's
consistent interpretation of the latter not to apply to habitats in
foreign countries. See Br. in Opp. 24-25. Moreover, as respondents
concede (Br. in Opp. 28), Section 9 also draws geographical
distinctions: while its prohibitions against commerce in endangered
species apply to commerce within a foreign country, its prohibitions
against taking of endangered species apply only within the United
States and on the high seas. 16 U.S.C. 1538(a)(1); see Section 3(9),
16 U.S.C. 1532(9). Respondents' contention that the overseas
application of the ESA presents a unitary question based on the Act as
a whole therefore cannot withstand analysis. Each provision of the
Act must be considered individually.
3. Section 7, the proper focus of analysis here, does not contain
the requisite "clear statement," EEOC v. Arabian American Oil Co., 111
S. Ct. at 1235, that the duties it imposes apply to agency actions in
foreign countries. Congress's failure in Section 7 "even to mention
foreign nations" or to "address( ) the subject of conflicts with
foreign laws and procedures," 111 S. Ct. at 1234, confirms that
respondents have not rebutted the presumption against
extraterritoriality. That conclusion is especially warranted here,
since Congress prominently mentioned foreign nations and their
concerns in other sections of the Act (see Pet. 26-27), but not in
Section 7.
Indeed, as we have pointed out (Pet. 23-24), the only geographical
reference in Section 7(a)(2) is to States, in the critical-habitat
clause. Respondents apparently concede (Br. in Opp. 24-25) that that
clause (which imposes a duty to avoid destruction or adverse
modification of critical habitat) -- like the requirement under
Section 4(b)(2) to designate critical habitat in the first place --
does not apply in foreign countries. But they cannot explain why
Congress would have given a radically different geographical scope to
two duties set forth in the same sentence of Section 7(a)(2): the
duties to avoid jeopardy to endangered species and to avoid adverse
modification of critical habitat of such species. The conclusion that
Congress did not draw any such distinction is evident from the
domestic focus of the provisions in subsections (e)-(p) of Section 7
for exempting an agency action from the rigid requirements of the very
"no-jeopardy" clause of Section 7(a)(2) at issue here. See Pet.
24-25. /6/
4. We have explained (Pet. 4, 12, 20-22, 28-29) that the ruling
below will impose substantial burdens on the conduct of United States
activities in foreign countries, including diplomacy and defense, and
threatens interference with the Executive Branch's conduct of foreign
countries, including diplomacy and defense, and threatens interference
with the Executive Branch's conduct of foreign affairs. Respondents'
only reply (Br. in Opp. 2) -- that the record in this case does not
demonstrate any unacceptable burdens -- is disingenuous. If
respondents had brought this suit as a challenge to a specific United
States-assisted project in a foreign country, the adverse
foreign-relations and other implications of a judicial application of
domestic environmental standards to a project undertaken by a foreign
government would have been apparent. By instead bringing this case as
an abstract challenge to advisory regulations, respondents have sought
to prevent the real-world implications of their expansive reading of
Section 7 from being fleshed out in the context of a concrete
controversy. But those implications are both real and serious, and
merit this Court's review, especially when coupled with the court of
appeals' unprecedented and fundamentally erroneous holdings on
standing.
For the foregoing reasons and those stated in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.
KENNETH W. STARR
Solicitor General
THOMAS L. SANSONETTI
Solicitor Department of the Interior
MAY 1991
/1/ Respondents contend (Br. in Opp. 20 n.4) that any error by the
court of appeals on the "procedural injury" theory is "irrelevant"
because the court found that two of Defenders' members have standing.
As we explain in the text, the latter ruling is erroneous as well. In
any event, the existence of an alternative holding below does not
detract from the precedential effect of the Eighth Circuit's
"procedural injury" holding, and it therefore does not eliminate the
circuit conflict or reduce the substantial likelihood that the
decision below will invite future suits based on hypothetical
"procedural" harm, divorced from concrete injury.
/2/ Respondents misunderstand (Br. in Opp. 6 n.1, 21 n.5) the
significance of our observation (Pet. 16) that the action agencies,
not the Secretary, are ultimately responsible for determining what is
required of them under Section 7(a)(2). We do not suggest that where
Section 7(a)(2) applies, action agencies may simply ignore either
their duty to consult or the results of consultation. Our point,
rather, is that the federal agency responsible for a project "makes
the ultimate decision as to whether its proposed actions will satisfy
the requirements of section 7(a)(2)." 51 Fed. Reg. 19,928 (1986). As
this Court recognized in TVA v. Hill, 437 U.S. 153, 186 n.31 (1978),
the action agency may make a final decision "notwithstanding contrary
advice from the Secretary of the Interior" -- subject, of course, to
judicial review of that final decision, which respondents have not
sought in this case.
/3/ Respondents note (Br. in Opp. 19) that although the Secretary
challenged respondents' standing on traceability and redressability
grounds on the first appeal to the Eighth Circuit, he did not renew
that challenge on the second appeal. However, issues resolved on the
prior appeal may be raised in this Court in a certiorari petition
seeking review of the court of appeals' judgment on the second appeal.
Reece v. Georgia, 350 U.S. 85, 87 (1955); Falk v. Brennan, 414 U.S.
190, 194 n.7 (1973); Christianson v. Colt Industries Operating Corp.,
486 U.S. 800, 817-818 (1988).
/4/ By the same token, respondents are incorrect in arguing that
the regulations make consultation "unavailable" (Br. in Opp. 2) with
respect to overseas projects. The regulations express the Secretary's
view that consultation is not required by the Act, but they in no way
preclude voluntary consultation of the sort that occurred with respect
to the Mahaweli Project. See Pet. 15.
/5/ Respondents' focus on the phrase "any endangered species" in
Section 7(a)(2) is misplaced for an additional reason. The answer to
the extraterritoriality question in this case hinges on the meaning of
the phrase "any action" in Section 7(a)(2). The regulation at issue
interprets that phrase to encompass only agency actions "in the United
States or upon the high seas," but recognizes that the protection of
Section 7(a)(2) applies wherever such actions would affect "any listed
species." 50 C.F.R. 402.01. Thus, the regulation indicates that
Section 7(a)(2) would apply if an agency action in the United States
or on the high seas would adversely affect a species in a foreign
country -- for instance, if the species is migrating or has been
captured, or if the agency action has effects that spill over onto
foreign soil. Respondents' repeated mischaracterization (Br. in Opp.
7, 8, 11, 12, 22, 26) of the regulation as focusing on the location of
the wildlife, rather than of the agency action, simply confuses the
issue.
/6/ Respondents assert (Br. in Opp. 23) that the Conference
Committee on the 1978 amendments indicated a desire to retain the
Secretary's initial interpretation that Section 7 applies to agency
actions in foreign countries. But respondents cite no evidence that
this interpretation was brought to the Committee's attention, let
alone that it was approved by the Committee (or Congress as a whole).
As we have pointed out (Pet. 28), the Committee was not focusing on
the extraterritoriality question at all; it was instead considering
whether to retain a statutory framework that was familiar to federal
agencies and had been incorporated into regulations. The court of
appeals' reference to "extensive commentary made by numerous agencies
on the issue (of extraterritoriality)" (Pet. App. 17a), cited by
respondents (Br. in Opp. 23), apparently was to comments submitted to
the Interior Department in response to its initial interpretation (see
Pet. 3). There is no evidence that similar comments were presented to
Congress.
Nor is there force in respondents' argument (Br. in Opp. 23 n.6)
that "plenty of floor statements recogniz(ed) the worldwide scope of
the Endangered Species Act." Congress clearly intended that some parts
of the Act would have an effect overseas. As we have shown (Pet.
27-28), however, when Members of Congress focused on Section 7, they
spoke only in terms of its domestic application.